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STATE OF G;ri.IO
Plainti^ ^^^^^ell^^
^^^ THE SUPRII-' COURT OF 0I^^I0
-V-
INOOSYF 1,47ENTd J: .^R
^^f er^dan.tlkp^ellant
CASE NO:13-058 8
On kp^al from '^.i?^^ BeLmont
r"w'I`v Caunty Colirt of AppealsS+^v ^^^ ^^^^I^.^.^':^ Dis^.^vi^.t
,.A. CASE LNO® 12 BE 21r
MrE:^1,13RAMID11^4 IN ST.^^BT OF YpVISDI^..^IC?NOF APPELL^.^L' JACOB WENV,
JA ^^ ' ,'I'rI ( 5^^24^")Post o --ci^e Box 5500Chilla;co':.he, Ch.a.o 415601
1)F,FFI,,'T-),^^1T/ APPF^I.,L!*3T
ChTRIS'^OPH: t'yFP IIETER147^A West Mai n St:^^^^^^^ Clairsville, 9,,Ai,o 43950
Cr)l.31?S.--F,L MR. :APP..FLILLPF, STAT^?. OF 01410
CAPR 10 2013
CLERK OF COURTSUPREME COURT OF C 0
RLEDAPR 1 2,013
(;LbiK 4 COURTi^^iT^^^ GUURI OF OHIO
TA,FLE OT ^OINUNITS
R^GE NO
^.^LADLATIODN OF C^71HY '^IIS IS A CASE 0,^' PLlBLIC OR. GR,F- ^.`^ GRMEMLlkM w.:^sT A^?^ ilwmmpS 'k SLBSTAD?""°IAL, C^.^^^^STI'PrrI0EqA:L CQUESTION'
3TATR, :ED^' OF THE CASE *rU' FACTS
PROPOSITION OF LM<,? I
PROPOSTT^t^^^5 IDF LAW II
C(TNKLUSTOTS1
C .^.:^R^7^°TQNTE, 0 S' i'. VICE
APPVR 'T°uix
Jud,me^t Entry and b°pinion9 Court of Appeals, Balmo^.^t County February 6,201-1
c,
Juch."rn^en^ Entry an-d Opinion, 'Cne.1^^nt County, Reconsideration Ma^ch 11, 2013
-i_
FDT,,L4i'`a^:^'^I9N OF 1.,?^ TR;CS IS ,\ CASE OF PtMLIC ..^^R GP,.F°,,^," GFIw?^'E..AL^'^"^TE15REST {VD TNNOURES A SUF'-STAY-IMPT., ^ovsufJ"riacj r,)TE^ sTIolsl
As '^1h.3.s Court is e1vmre that Due Process de.^n^--^^ that d:^feikdan'^^ Tic'Ve
fair warning of nahat constitutes a crime. More i^^rtatitly, due pro':ess of
law requires a f `?.7. !' op?=tunitj7 to G=:1.nsPaTer a accusation understandinply. .^ ^
stated. in tlie- Sta^^^^ent of t^^^r.^ Case a-n^l F^,::,,t^ ^ ^^ pellan^^^: ^ a life Iong Amish,
not only not tands?""stand our culture, he certainly had no concept of t1h^
1 aw or ti"ke procedures l.n'4T63lvedn CoI"k^"'v^que^.?t 1®''ya the canons oE decency cknd
fai'"11^^^ imiDC3Se u-p!wbn this State a duty to teflk^ ^Inat'«^.'veL° measures are
neces.=',a"y und-.' th^'? ^ircL7msta..?ces to ensure that the Appellant understands
. •^.^...r'_. .' la.'.°.., .^',^es c^,T^"^. '^o^Je a 4c.'.^,^' t^ppc`77"t^.'t^.1^t'^7' tR? prf^T3c'^."e and present his e^its^,?err.^
On J-cini.aarv 19, 2007, Ap3.lan^ was arrested by P. plain clothes
^^^^ tive, p:^ e-aced in -ain unma^ lked vehicle, and held, for qu^st-^ onin; . 5,:+^ thotit
the a^si^tan--e of c;oijnwel, t^^^ De^eectirr'^ ^^sure^^. Appellant tl^v-t iloif he w7uld
plead to Cti!' dia1,"?°^ ^ thinc,,s t7cald go well for 'C'.1.]..ma " At no t7:!:?3^..'' from January
1^ 20^°1,^ , r ea 2007, did ;'^^^e^..^ r.,a,,.L'it h.'- ..^.'^7"^? ^^' lry.. . r'Y,^^^..^^'^^'l tM",. ^ ^'.^'?.R^ ^aTt^^,^ ^C+'^'=^r.^'7^ 26, ,, ,
cown^ ^^ , clieak ly in coT1S liwt w:L ti? Vie ^.;ons t""..1`ML3 tion.
Ts'3.e S mrdamf'T1.tal unfairness «+7c"3. s ag',:,,re^.'47a^ed f??rther by his ^,^e+.T? l`^er'C1^nt
nnd despair eTi ;^?€l i:h7.^.^ mistreatment tha$:, destroyed vA°Iatu'4Twr
erw9p',. 7or^,.unit^,V he "'t'^ gb.t otl:2e'F.°4:Ase have had to '¢j'arepai.,' an €.l,T?^^der^^and:.i.72..^.^^ sw
to tne aC=_i.^^tions
l.t'^ short, the court gave him n.C3 instructions ^-,oncx?rC"31 n;? Vn? C.livi7" ges nor
hi s constitutional rigl"kts« N€"3twiL"'6stet'H'1d,iwn^ h1s Amish '?erittrk.?,eg it is
impossible Al'c^r a layman, left unaided, to fully Lm^.erstar^^ ^^^^^e-n r^ished fr^,.-P.
arrest to uoi-afi-r^emen^ NAthout int^rn4,pti^n n^^ withoa.^.t guidance or advice.
P;b 1
^TA.,c`IENT OF TWE CME, NO FACTS
On Janua^.^ 19 9 2007 , Jacob Weaver, hereinafter A ppeI,lan^, was arres L-:^^
yi^^,t^ no explanation of t^:^.^ ^.^^^.,.r^^s and, ^rocesssd into the t-_l?nc^^t Courft
3ail® 'Not only was A-ppellant a $'First "Pime C^^^^nder, `^ but lived :m^ entire
l-^ fe in t1he Amidn traditions and compl:etely abstained from sonciety an_^.^ the
c^^^^^nierr-.^^^ of trntyiprn day :^eriea^ More ^bviotzs Twas Appe7:lant's } ^^^^^^ ^e
in fLie science of Lave
AL'ter m^^^ ^^^^ ^ weeks of ^^^^^ne-menta counsel was ap^oir,ted, ^^l
Febrwry 21'a, 2007.
^ ^ ^^ ^dvi p- , coupled vrith the confusion and isolationJ.o^a r^sur^se^.
suffered by Appellant, ^^^^^^^ aplea of not ,a^^.^.ty l^^r reason of insani.ty.
On .:.^.^ ;u.st 3, 2007, after being denied his rig"rit to a speedy trial as
cor^'irined, by counsel, counsel prodded ^^^^^ ^ ant to plead guilty to the
all^^^ed. rape. Subsequent to it'his e^.^°-on^^^^^ plea, Appellant ^ias ^^ntencec-I to
8 years of n;f^^l impri ^^ent.^^c^
F9,. 2
PR.OPOST'TIO1^^ ^^^ ^NW I
Appellant Taa.^ arraigT`^^^d anP., sentenced without due process o^' .' I^"'^^^1
As h^^d. in V'1a ^,^o1,1rt^enti°!. APendmen^^ a person is asSLwed aadue process
ol' lai,,,i" 4hieht requires a (--^^^^ id^.^-hin its jurisdiction, to review the i:r?i:^a^e
course of the proceedings to see if violation of the or^^i^1^^ of ju^tice
so rooted in tradition and (-,onsi--ience as to be ranked f^.^ndanenfial. The State
is required to ^iv^ the 4^pel^ ^^t ar opportunity to meat thte, ac^^^sati^r,
portuo-ity to answeragainst him. A :^ormat ^earin.^ is not suf Eiaa entg the o-o
1n13^^^ ^^^ ^^alm A hearing , is a ^,t'4a1^I"9 ;1:,"^:n 't4.'^e accused cannot :"C^"^^'^ the ,,.{6'7.c'^.^;^e
because he cannot ?'.,,E3mprrw"C`tend it or ^.annP3t intelligently rnanag° 7:1? s d^^ense>
Without t1:^e aid, at counsel, Appellant, and his allege4' victim, Inis
dau?hterg iw4•`^xe l°ci to 'beli-av^ false prC39T'1.iseS `? T2 !;?xCha11ge for T.i"r.ca.^.^1n?
statements to support a conviction.
,^^pellt^^^t ^aa:s convicted a^.^. se^?t-n^.ed by the de^.^.ber^.t^. use o^ false
confessions from bC3^^n, 1^^art7 :^^ . This c-oTltrived. conVi4^.tlitan depr?v''d Appellant
of liberty throug,'n, deliberate deception.
The fLindaqip-ptcil unfairness ^hich vitiates the case ^ub, j^.^diee r^sulteri
from: 1) 'Liis absence from society for over ^^ ^aars; 2) the ^^^ ^^ondu:t from
Vne d'et^^tiv^ - a.rad. 3) the ind-if_; aren'c^ oL the :awT:rt of Ap^a^^.z.a^it's rx gn itsA
Clearl_,^, as tt]-r;M record conc.u.r, s, th:erre is no argument necessary to
demonstrate that t'he Stateg s conduct was calculated to place Appellant into
a state of helplessness, coT'^flusi+,".1`k ax2''^. despondency into acqu"! ^scee ce witIn
Statv ^ s will.
pg^
.W
^11C)jr)SI^'10F4, OF LM,7 II
411-p;^ellant qwas denied effective a^sistann-ia of n-ounsel by^ig denied 1.11 s s133eedy trial r" 3?^nt^
Once ac,,ai^^ ^ as the record con:mrs, ^^^ella:nt did not receive any
asw istanc^^ ^^^ ^otmse1. for over ^.^ r^on^^n ^^itrine ^.'i.tt^.^g ir^ the Belmont County
.1ail.
It is „ridely 'held ehat '^^^ ^^iho was not re^^^^enited lDy col;y^^el, e,Aho d.l.d
+^not :xi^.^."Cre ^^. s ^^^,^i`1'^ to c^8t^'^"tse^- and o "'^.S ^.gT'6o;,:^'7'2t of '^,^.s L^.ght to d^?^x7c^n
^`^`i^'L7.t^,.t7'^'R was C^e^u°^,P"de.^ to 7)f:+^+^.^..'^.'^pcounsel ^^1e ^J^^°^ y class ^'°?>1 .l ^,m`^a' C): . ,.^+U'^1^^^, ^
ppoj,r^e-d counsel, t;rte first defenseIronically, after eventually being ^T
sta t,ed was an insanity plea. It was -vonv:i.n.^^gly clear that Che Appellant
so bewildered of V"2e -atiT'..'nts taking ^^ aae t1hat inscanity was a l^gi.cal
de::^ensea
^ :t?.^..^ speedy'' ..^ftier informing ^1'k)^^.^.:''^t ^*^c^'^ ^ trial rights s,+7e i"e t^olated,: u
,r^ella:^t to ^^^^^eacl guilty to the ,,aille,g^.^d crmircae.counsel erroneously adv^ ^ed A
A cm^a^^e:nt. attorney would k^ow that a plea of ;pw.lt^ would 'thereby waive
all statutory ri^^hts in the c^ase at ic^f.r<
'w':.lz IMITWU^ I 011-111I
For the above stated reaco^^, this ^ourt si^ould accept jurlisdi.ctionm
Res-pectful.^a.y submitted,
ErcAb TJ°"k.V'er
^^^ 0-11:fiwa Box 5500On"ill'1 cot^^ ^ Oh3 o 45601
I`^i i IAT "'VA^i:'^^" LELTrt"hz.kt 1
Pga4
C :'4'I"IFICATE OF SURV^CE
I here:lb^r ^ert^.fy ^.^°a^^t a co^y of ^.;'^.e fore^;O^.^^:s; ;`i^rrGorw^^^^i,^^ in S^x^^p,^^r^^ ofJurisdiction^icti^art .ias f or^aardet^ i^y ,. U. SP to Cnristopher Berh lt ^n- ^^^elniont County Pras°u^^^ 7 147A ;,,>>^t Main Str+^^et, Stw 'Clairsville, amllo439550, Or this ^ day of April, 2013.
Zt^^^ ^^^^^^r
pg, . 5
IN `M SUPREME COt TR'T° OF ^1410
STATE OF 01410
Plaintif f/.^^^ellee
-V-
JAM1^ ^80'VEIR
Def enclan t/ Appellant
CASE NO:
On :^^^eal from the BelmontICoi^ty County Court of AppealsSeventh :Appe1late District
C.A. CASE K)a 12 BE 21
kpP.EITMIX Tl)
A. ^ 1 .Ai "Dt^^^ IN a^1F F',oPT OF 3T r?. I^^ ^^If._).fi`1OF ,APPELLA^IT _1.^CO" "\VT;,
STATE OF OHIO
BELMONT COUNTY
)))
STATE OF OHIO5 .
PLAINTIFF-APPELLEE,
VS.
I n t.. a.WCOURTDF APPEALS
NO lQ ^_ -CYNTHIA K. MCGEE
CLERK OF COURTS, BELMONT COUNTY
FEB 0 6 2013IN THE COURT OF APPEALS OF OHIO
SS: SEVENTH DISTRICT
CASE°NO: 12 BE 21)))) JUDGMENT ENTRY)_...^r^a. ^.
3°'WEAVEIZ,.. _ . .. .. .. ..)
DEFENDANT-APPELLANT. )
For the reasons stated in the Opinion rendered herein, the assignments of
error are without merit and are overruled. It is the final judgment and order of this
Court that the judgment of the Common Pleas Court, Belmont County, Ohio is
affirmed. Costs taxed against appellant.
L-r
Z7^^^RNA'LIZED
ERK 3EF{UED C®PII* 6NALL THE PARTIES OR
THEIR. AftORNEYS ENDED
/ ^ a't-^JJUDGES.
F6LtLJCOURT OF APPEALS
. . _ . . _. . . . _ . . . . . . . , #^ ' •C?
.^i.,.r^IYo
CYNTHIA K. MCGEECLERK OF COURTS, BELMONT COUNTY
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS FEB 06 2013
SEVENTH DISTRICT
STATE,OF QHIO,
PLAINTIFF-APPELLEE,
CASE, NO. 12BE 21
VS.
. ...._.... .,
DEFENDANT-APPELLANT.
CHARACTER OF PROCEEDINGS:
JUDGMENT:
APPEARANCES:For Plaintiff-Appellee:
For Defendant-Appellant:
JUDGES:Hon. Joseph J. VukovichHon. Cheryl L. WaiteHon. Mary DeGenaro
1 OPINION
Criminal Appeal from Common PleasCourt, Case No. 07CR33.
Affirmed.
Attorney Christopher BerhalterProsecuting Attorney147-A West Main StreetSt. Clairsville, Ohio 43950
Jacob. Weaver, Pro se#A558-248Chillicothe Correctional InstitutionP.O. Box 5500Chillicothe, Ohio 45601
Dated: February 6, 2013
-1-
VUKOVICH, J.
{11 } Defendant-appellant Jacob Weaver appeals the decision of the Belmont
County Common Pleas Court denying his motion to vacate his sentence wherein he
alleged that_his. speedy#rial r.ights. had-been_ violated. Contrary to appellant's first
argument on appeal, speedy trial issues do not void a conviction or sentence.
{12} Appellant's speedy trial argument also fails because he pled guilty thus
waiving the issue. Even if there had been no waiver, his arguments are based upon
items- existing - irr th'arecord- but he did not file a ydirect appeaf.` Other arguments he
raises here were not raised in his motion before the trial court and cannot be
considered for the first time on appeal. For these various reasons, the trial court's
refusa-I to vacate the sentence is upheld.
STATEMENT OF THE CASE
{13} On January 19, 2007, appellant was arrested for raping a child in 1999.
He was held in jail as he could not make bail. On August 3, 2007, he pled guilty to
the offense. He was sentenced, in an August 31, 2007 judgment entry, to eight years
in prison. He was then labeled a sexual predator. He did not appeal from his
conviction.{14} In 2011, appellant filed an unsuccessful motion protesting his
reclassification as a Tier III offender. On appeal from that proceeding, this court
vacated his Tier III classification and reinstated the prior sexual predator designation.
See State v. Weaver, 7th Dist. No. 11BE12, 2011-Ohio-6402, ¶ 19.
{15} On May 10, 2012, appellant filed a motion asking the trial court to
vacate his sentence. He argued that his speedy trial rights were violated because he
was not brought to trial within ninety days after his arrest. See R.C. 2945.71(C)(2)
(defendant shall be brought to trial within two hundred seventy days after arrest);
R.C. 2945.71(E) (triple time if held in jail in lieu of bail). In his motion, appellant urged
that a speedy trial violation voids a sentence and is thus an issue that can be raised
at any time.
-2-
{¶6} The trial court overruled appellant's motion. The court outlined various
motions filed by appellant which stopped the running of the speedy trial clock. For
instance, trial was originally set for April 3, 2007, a date prior to the running of the
speedy trial time. However, on March 29, 2007, appellant filed a motion for a
-competency_ evaluation}.a motion tosuppr.ess his own. statements; a motion to
disclose the confidential informant and to suppress the informant's statements, a
motion for any tape recordings of the victim's statements, and a motion for the
victim's school and counseling records.
{17} "- - -Therr, when the evatuatiori was completed, -counseC-requested two
different continuances of the competency hearing. At the rescheduled competency
hearing, appellant stipulated to competency and entered his guilty plea. The trial
court thus concluded that the record showed that appellant's speedy trial rights were
not violated.
{18} The trial court alternatively concluded that appellant should have raised
any speedy trial issue on direct appeal, classifying appellant's motion as one seeking
post-conviction relief. Appellant filed a timely notice of appeal from the denial of his
motion.
ASSIGNMENTS OF ERROR ONE AND TWO
{19} Appellant sets forth four assignments of error, the first two of which ask:
"Whether the trial court abused its discretion by dismissing petition as clarified in RC
§2953.21" and "Whether the trial court abused its discretion by failing to conduct an
evidentiary hearing."
{110} First, appellant states that he did not file a motion for post-conviction
relief. Rather, he characterizes his filing as a motion to vacate a void sentence that
can be filed at any time, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6328,
942 N.E.2d 332.
{111} The Fischer Court held that a facially invalid sentence is considered
void, and thus, if post-release control was not imposed even though it was required
by law, that portion of the sentence is void. Fischer, 128 Ohio St.3d 92 at ¶ 26. This
case does not support appellant's position. Appellant's argument was not actually
-3-
that his sentence was contrary to law. Rather, he alleged an error occurring prior to
sentencing. The Fischer Court specifically stated that a proper motion to correct an
illegal sentence presupposes a valid conviction and cannot be used to challenge
alleged errors that occurred prior to the sentence. Id. at ¶ 25. As such, appellant's
first argument is without merit.
{112} Appellant's motion also failed to recognize that his conviction was by
way of a guilty plea. By entering this guilty plea, he waived this statutory speedy trial
claim. See State v. Kelley, 57 Ohio St.3d 122'7, 130, 566 N.E.2d 658 (1991); State v.
Davis, 7th- Dist. , No: 081VIA80, 2009=Ohio-4639; ¶-8. "Notably, appel(ant tlid not seek
to withdraw his guilty plea under Crim.R. 32.1 or otherwise. Compare Davis, 7th Dist.
No. 08MA80 at ¶ 8. See also Ross v. Common Pleas Ct of Auglaize Cty., 30 Ohio
St.2d 323, 323-324, 285 N.E.2d 25 (1972) (voluntary plea waives all non-
jurisdictional, appealable errors which may have occurred prior to the plea). As such,
appellant's guilty plea bars his speedy trial claim.
{113} Even if appellant's conviction had resulted from a no contest plea or a
finding of guilt after trial, his claim would not be cognizable by way of a post-
conviction relief motion pursuant to R.C. 2953.21. That is, appellant alternatively
argues that the trial court should have found that his speedy trial arguments can be
raised in a motion under R.C. 2953.21 and that the court was required to hold an
evidentiary hearing under said statute.
{114} However, appellant did not allege that it was necessary to evaluate
items existing off of the record in order to ascertain whether his speedy trial rights
were violated. His arrest date, the fact that he was in jail pending his plea, the
various motions, and the court's entries setting and rescheduling hearings and
attributing time to the defendant, and the hearings held before the court are all part of
the record. This type of speedy trial is a matter for direct appeal (after the guilty plea
was attacked for instance or after trial or upon a no contest plea).
{115} Pursuant to the doctrine of res judicata, a defendant cannot raise an
issue in a motion for post-conviction relief if he could have raised the issue on direct
appeal. State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997); State v.
-4-
Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). And, res judicata allows a
court to deny a petition for post-conviction relief without a hearing where the claims in
the petition were or could have been raised on direct appeal. State v. Jones, 7th
Dist. No. 10MA47, 2011-Ohio-1002, ¶ 10. Thus, even if appellant had not waived the
ot use the-post-conviction statutes to raise these
speedy trial claims. Contrary to appellant's suggestion, just as a speedy trial violation
does not void a sentence, it does not void a conviction. State v. Davis, 7th Dist. No.
08MA174, 2009-Ohio-4634, ¶ 2.
{116} "Moreover,"°'if"pa'p,ell '. nt's^--^etition_was-see^ing ^ost-conviction reliefp p
under R.C. 2953.21, then it was untimely filed. See R.C. 2953.21(A)(2) (if no appeal
is taken, petition for post-conviction relief shall be filed no later than 180 days after
the expiration of the time for filing the appeal). The trial court was not permitted to
entertain this untimely post-conviction petition unless appellant was unavoidably
prevented from discovering the necessary facts or the United States Supreme Court
recognized a new retroactive right. See R.C. 2953.23(A)(1)(a). He must also have
presented clear and convincing evidence that, but for constitutional error at trial, no
reasonable fact-finder would have found him guilty. See R.C. 2953.23(A)(1)(b).
{117} Here, appellant did not allege how he was (or even that he was)
unavoidably prevented from discovering the facts upon which his petition was based.
See R.C. 2953.23(A)(1)(a). In fact, he states that counsel raised this issue below,
and this is confirmed by a judgment entry mentioning that counsel's motion to dismiss
was overruled. Moreover, appellant did not set forth a new retroactive right that has
been recognized by the United States Supreme Court. See id. As such, the trial
court had no jurisdiction to hear or consider this filing under the post-conviction relief
statutes. See State v. Bryant, 7th Dist. No. 10MA11, 2010-Ohio-4401, ¶ 16.
{118} For all of these reasons, these assignments of error are overruled.
ASSIGNMENT OF ERROR NUMBER THREE
{119} Appellant's third assignment of error inquires: "Whether the trial court
abused its discretion for its failure to comply with Crim R 1 1."
-5-
{¶20} Appellant claims here that he was coerced into pleading guilty after his
speedy trial rights were violated and that he did not understand the implications of his
plea. Although unrelated to the text of the assignment of error, he also alludes to a
claim of ineffective assistance of counsel and a belief that he would spend the rest of
his life in prisonif he did not plead guilty.
{121} We first point out that although the text of his assignment claims a
failure to comply with Crim.R. 11, appellant does not specify which rights the court
failed to adequately explain. As to any allusions to what counsel told him, such, ^ . ^_^.. ^
alfegatio^ns exist outside of the rec,.ord and were not before the trial court. A
defendant cannot add matter to the record on appeal that was not before the trial
court. See State v. Ishmail, 54 Ohio St.2d 402, 406, 377 N.E.2d 500 (1978); State v.
Petefish, 7th Dist. No. 11 MA70, 2012-Ohio-1502, fn. 1.
{122} Similarly, the arguments set forth in this assignment of error were not
even raised in the motion before the trial court. As such, they are not properly before
this court. See State v. Robinson, 7th Dist. No. 09M06, 2010-Ohio-2698, ¶ 21 (an
appellate court will not consider arguments on appeal from the denial of post-
conviction relief that were not presented in petition to the trial court), citing State v.
Garrett, 7th Dist. No. 06BE67, 2007-Ohio-7212, ¶ 8. See also State v. Zamora, 3d
Dist. No. 11-08-04, 2008-Ohio-4410, ¶ 26; State v. Sheets, 4th Dist. No. 03CA24,
2005-Ohio-803, ¶ 29; State v. Bandell, 9th Dist. No. 96CA006524 (Apr. 9, 1997).
This assignment of error is thus overruled.
ASSIGNMENT OF ERROR NUMBER FOUR
{123} Appellant's fourth assignment of error asks: "Whether the trial court
abused its discretion in not informing Appellant of his rights."
{124} Under this assignment, appellant contends that any waiver of his
speedy trial right was invalid as it was not made in writing or in open court. See State
v. King, 70 Ohio St.3d 158, 160, 637 N.E.2d 903 (1994) (a defendant's waiver of his
or her right to a speedy trial must be either written or made on the record in open
court).
-6-
{¶25} However, the trial court's reference to waiver in its judgment entry
denying appellant's motion here was not to suggest that appellant entered an actual
speedy trial rights waiver. Rather, as outlined in our Statement of the Case supra,
the trial court's mention of waiver was a reference to the items filed by appellant
which tolled. the speedy #riaE clock and-thus acted as ternporary waivers. That is, time
is tolled by: any period during which the accused is mentally incompetent to stand
trial or during which his mental competence to stand trial is being determined; any
period of delay necessitated by reason of a motion, proceeding, or action made orN^.
instituted by the accused; the period of" any continuance granted on the accused's
own motion; and the period of any reasonable continuance granted other than upon
the accused's own motion. See R.C 2945.72(B), (E), (H).
{126} Hence, this assignment of error is the result of a misconstruction of the
language in the trial court's entry and is moot.
{127} For the foregoing reasons, the judgment of the trial court is affirmed.
Waite, J., concurs.DeGenaro, P.J., concurs.
APPROVED:
EPH J. UKOVICH, JUDGE
0^
FIL.E®COURT OF APPEALS
NO l02 13 C02CYNTHIA K. MCGEE
STATE OF OHIO, BELMONT COUNRK 0F COURTS, BELMONT COUNTY
MAR 112013IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHlO,
PLAINTIFF-APPELLEE,
-VS-
DEFENDANT-APPELLANT
HARACTER OF PROCEEDINGS:
UUDGMENT:
6PPEARANCES:^^For Plaintiff-Appellee:
Por Defendant-Appellant:
n. Joseph J. Vukovichn. Cheryl L. Waiten. Mary DeGenaro
CASENO. 12BE21
OPINIONAND
JUDGMENT ENTRY
Application for Reconsideration.
Application for Reconsideration Denied
Attorney Christopher BerhalterProsecuting Attorney147-A West Main StreetSt. Clairsville, Ohio 43950
Jacob Weaver, Pro se#A558-248Chillicothe Correctional InstitutionP.O. Box 5500Chillicothe, Ohio 45601
Dated: March 11, 2013
d-1-
PER CURIAM.
¶'{1} Defendant-appellant Jacob Weaver has filed an application for reconsideration
of our decision in State v. Weaver, 7th Dist. No. 12BE21, 2013-Ohio-430. For the following
reasons, the application is denied as it is untimely and it is without merit in any event.
1{2} An application for reconsideration of an appellate decision can be filed no later
than ten days after the clerk has both mailed the parties the judgment and made a note on the
docket of the mailing. App.R. 26(A)(1)(a). Our decision affirming the trial court's denial of a
lpost-judgment motion to vacate a sentence was filed, mailed by the clerk, and docketed as
imailed, all on February 6, 2013.
¶{3} Appellant's certificate of service states that his application for reconsideration
/as mailed on February 15, 2013. However, mailing is not the equivalent of filing for
ocuments such as this application. Specifically, "Documents required or permitted to be filed
in a court of appeals shall be filed with the clerk. Filing may be accomplished by mail
addressed to the clerk, but filing shall not be timely unless the documents are received by the
clerk within the time fixed for filing, except that briefs shall be deemed filed on the day of
mailing." App.R. 13(A).
1{4} Still, days can be added to appellant's time under another rule, which provides:
"Whenever a party has the right or is required to do some act or take some proceedings within
a prescribed period after service of a notice or other document upon that party and the notice
or paper is served upon the party by mail or commercial carrier service under App.R. 13(C)(4),
three days shall be added to the prescribed period." App.R. 14(C).
¶{5} As appellant was served with our decision by mail, he had thirteen days to file
the application for reconsideration, making it due on Tuesday, February 19, 2012. The
application was not filed until February 21, 2012. Thus, it was not timely filed.
1{6} In any event, appellant's application is without merit. A reconsideration
Eapplication must call to the attention of the appellate court an obvious error in its decision or
lpoint to an issue that was raised to the court but was inadvertently either not fully considered.
v. Costanzo, 7th Dist. No. 99CA294 (Feb. 7, 2002). An application for reconsideration
is not designed for use in instances where a party simply disagrees with the conclusion
reached and the logic used by an appellate court. Victory White Metal Co. v. N.P. Motel Syst.,
7th Dist. No. 04MA245, 2005-Ohio-3828, ¶ 2; Hampton v. Ahmed, 7th Dist. No. 02BE66,
io-1766, ¶ 16.
-2-
¶{7} Appellant's argument on appeal was that the trial court erred in denying his
motion to vacate his sentence wherein he alleged that his speedy trial rights had been
violated. Weaver, 7th Dist. No. 12BE21 at ¶ 1. As to appellant's main argument, we
concluded that speedy trial issues do not void a conviction or sentence, and thus, his motion
did not fall outside the rules of post-conviction relief petitions. Id. at ¶ 1, 10-11. We then
pointed out that his guilty plea waived any speedy trial issues, and alternatively, if the motion_ _._
was actually one for post-conviction relief, then the matter was barred from being asserted by
the doctrine of res judicata. Id. at ¶ 2, 12.
1{8} Appellant's application for reconsideration states that there is an obvious error
in our decision at 111 because he "did state that his sentence was contrary to law ***." His
application erriphasizes that he pled guilty after his speedy trial rights were ailegedly violated.
1{9} Paragraphs 10 and 11 of our appellate opinion in this case, provide:
First, appellant states that he did not file a motion for post-conviction
relief. Rather, he characterizes his filing as a motion to vacate a void sentence
that can be filed at any time, citing State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6328, 942 N.E.2d 332.
The Fischer Court held that a facially invalid sentence is considered
void, and thus, if post-release control was not imposed even though it was
required by law, that portion of the sentence is void. Fischer, 128 Ohio St.3d 92
at ¶ 26, 942 N.E.2d 332. This case does not support appellant's position.
Appellant's argument was not actually that his sentence was contrary to law.
Rather, he alleged an error occurring prior to sentencing. The Fischer Court
specifically stated that a proper motion to correct an illegal sentence
presupposes a valid conviction and cannot be used to challenge alleged errors
that occurred prior to the sentence. Id. at ¶ 25, 942 N.E.2d 332. As such,
appellant's first argument is without merit."
Weaver, 7th Dist. No. 12BE21 at ¶ 10-11.
1{10} Appellant misinterprets our statement that his argument "was not actually that
his sentence was contrary to law" as a statement that he did not argue that his sentence was
contrary to law. Conversely, we did not intend to convey an impression of waiver on this topic.
Our statement conveyed that, even though appellant contended that his sentence was void, an
N 1.
-3-
argument alleging a speedy trial violation is "not actually" an argument that a sentence itself is
contrarv to law.
1(111) As the Supreme Court of Ohio pointed out in Fischer, a motion to correct an
illegal sentence cannot be used to challenge alleged errors that occurred prior to the sentence.
Fischer, 128 Ohio St.3d 92 at 125 (voiding portion of sentence which failed to impose post-
release control even though it was required by law). In other words, claimed errors that
occurred prior to sentencing do not make a facially invalid sentence. We stand by this
I conclusion and find no obvious error in ¶ 11 as claimed by appellant.
1{12} Finally, our opinion did in fact recognize that appellant pled guilty after his
speedy trial rights were allegedly violated. Weaver, 7th Dist. No. 12BE21 at ¶ 12. That is why,..n.. :. ^.NA^ ^
^claim. Id., citing State v. Kelley,we stated that his guilty plea waived his statutory speedy trial..
57 Ohio St.3d 127, 130, 566 N.E.2d 658 (1991). We yet alternatively stated that, even if his
conviction had not been the result of a guilty plea, the doctrine of res judicata barred his claim
from being raised in a post-conviction relief motion, which was untimely filed in any event. Id.
at ¶ 13-17. We stand by these conclusions as well and reiterate that reopening is not a place
to rehash an appeal. Hampton, 7th Dist. No. 02BE66 at ¶ 16.
¶{13} We conclude that appellant has not pointed to any obvious error in our decision.
And, this court has fully considered every argument that was properly before this court.
Accordingly, appellant's application for reconsideration is hereby denied.
^./jjz"4PH,J. V OVICH,
C Y . %APYE,
<^ j
MARY DeGENARO, Jl..(D ES.
Court of Appeals of OhioJUDGES
GENE DONOFRIO
JOSEPH J. VUKOVICH
CHERYL L. WAITE
MARY DEGENARO
COURT ADMINISTRATOR
R.OBERT BUDINSKY, ESQ.
r/Isr^
w o
Seventh Appellate District
March 8"'-, 2013
Cynthia McGeeClerk of CourtsBelnlont-County CourthouseSt. Clairsville, Ohio 43950
RE: STATE OF OHIO, PLAINTIFF-APPELLEE, VS.JACOB WEAVER, DEFENDANT-APPELLANT.CASE NO. 12 BE 21
TO THE CLERK:
By direction of the Court, you are hereby authorized to enter on the docket (not journal) of theCourt of Appeals the decision of this court in the above-captioned case as evidenced by thefollowing entry:
"March 11, 2013. Application for Reconsideration. Application forReconsideration is hereby denied. See Opinion and Judgment Entry."
You are hereby authorized to file and spread upon the journal of this court the enclosed journalentry in the above-captioned case.
Vgr,^truly yours,
Renee' A. Rockwood-Suri,Judicial Secretary
Enclosures
cc (w/encl.): Attorney Christopher BerhalterJacob Weaver
131 WEST FEDERAL STREETYOUNGSTOWN, OHia 44503
www.seventh.courts.state.oh.us
(330) 740-2180FAx (330) 740-2182
FILEDCOURT OF APPEALS
NO CYNTHIA K. MCGEE
CLERK OF COURTS, BELMONT COUNT`l
^^^ 11 ^^^^
®R .` _,Wu BELMONT • CARROLL • COLUMBIANA • HARRISON r JEFFERSON • MAHONING• MONROE • NOBLE
